Again, I appreciate the clarity and brevity of your response below. However, I’ve now had a chance to review your response more closely and must advise that I disagree with your assessment regarding item 3. I do believe that the records you have in connection with your role as Deputy Prosecuting Attorney are in fact public records as defined by RCW 42.56 and that you/Clallam County have a duty to disclose such records as requested in my recent Public Records Act request.
To assist you in understanding my position I am incorporating relevant excerpts from State law and from the Agreement for Services you signed in connection with your duties as Deputy Prosecuting Attorney. The statutory extracts are at the bottom of this communication.
First, as respects the duty to disclose, please note that records generated in your capacity as a Deputy Prosecuting Attorney fall within the scope of the definition of “public record” as defined by RCW 42.56.010. Clallam County is an “agency” as defined in the same section. You have been retained as a Deputy Prosecuting Attorney for Clallam County pursuant to RCW 36.27.040. (I apologize for not highlighting the salient provisions – formatting was lost as I transferred these excerpts from my digital note pages).
A copy of the contract for your services designating you as a Deputy Prosecuting Attorney was provided to me recently in response to a Public Records Request. That agreement is somewhat vague as to the full extent of the services you are to perform as Deputy Prosecuting Attorney but it appears, in part, you are authorized to appear in mediation or court with the full authority of the Prosecuting Attorney for the “express purpose of fulfilling the general grant of authority above stated”. The “above stated” refers to the matter of Lange, et al, v. Clallam County, et al., Kitsap Superior Court No. 14-2-01064-0 and “consistent with the agreement between Clallam County, Clallam County Prosecuting Attorney and Patterson Buchanan, executed on April 25, 2016”.
Let me note that Clallam County did not provide full disclosure of public records by omitting a copy of the Agreement executed April 25, 2016. I requested a copy of the contract for services in order to comprehend the nature of your status as Deputy Prosecuting Attorney. Because your contract includes by reference a second agreement which has not been disclosed or produced by the County (in violation of the PRA by the way) I am precluded from fully understanding the full scope of your Deputy Prosecuting Attorney appointment. As I will note later, there are some gaps presented by actual circumstances that strongly imply there is more to the story than what your contract suggests.
BY INCLUDING TRISH HOLDEN AS CC TO THIS COMMUNICATION I AM REQUESTING FORMALLY, PURSUANT TO THE WASHINGTON PUBLIC RECORDS ACT, A COPY OF THE APRIL 25, 2016 AGREEMENT REFERENCED IN THE CONTRACT FOR SERVICES. I FURTHER ASSERT THAT THIS PUBLIC RECORD SHOULD HAVE BEEN DISCLOSED/PRODUCED PREVIOUSLY AND THE FAILURE TO DISCLOSE/PRODUCE MAY BE A POTENTIAL PRA VIOLATION.
Second, I note what I assume are provisions 4 (e) and 4 (f) of the contract that has been provided. (I make this assumption because provision 5 appears to have been omitted from the document.) Provision 4 (e) requires you to maintain financial records and provision 4 (f) requires you to “keep detailed and accurate records of all work performed under this Agreement and shall make such records available to the County at all reasonable times.” I think the contract is quite clear as to the existence of records, their relationship to the conduct and performance of government activities, and their relevance to matters described in the definition of “public records” contained in RCW 42.56.010.
AGAIN, INSTRUCTIONS/CLARIFICATIONS FOR TRISH HOLDEN. PLEASE ADD THE RECORDS CONTAINED IN PROVISION 4 (e) OF THE FOBES CONTRACT TO THE PUBLIC RECORDS REQUEST MOST RECENTLY MADE. THIS INCLUDES THE STATEMENTS REFERENCED IN PROVISION 2 (b) OF THE CONTRACT THAT ARE PROVIDED BY MR. FOBES DIRECTLY AND “ONLY” TO THE PROSECUTING ATTORNEY. THE PUBLIC RECORDS PURSUANT TO PROVISION 4 (f) HAVE ALREADY BEEN INCLUDED IN THAT REQUEST AND ARE THE BASIS FOR MR. FOBES COMMENTS BELOW.
Third, I ALSO challenge your assertion that you are in fact an independent contractor. Over my years at both Boeing and Microsoft I dealt with the legal status of independent contractors in considerable detail. As you know, independent contractor status is highly relevant to tax law, tort liability, and employee benefit obligations, to name a few areas. The IRS has published extensive articles clarifying the numerous characteristics of a true independent contractor relationship. There is no need to go into that here because you have already made admissions suggesting strongly that you are not an independent contractor.
I note that in your clear but brief response, items 1 and 4, you specifically cite reliance upon your client (and your superior, the Prosecuting Attorney) as partial basis for rejecting my “demand” for payment of legal expenses I incurred in confirming the various violations of law asserted in my actions against the Cebelaks and Clallam County. Independent contractors operate independently, making decisions as necessary to accomplish the defined statement of work contained in the contract for services. It does not appear that you are making any independent decisions here.
As a side note, there is a further issue here regarding whether you have exceeded the scope of the Agreement cited above. That Agreement (and again with the caveat that the full scope of services cannot be ascertained without a copy of the April 25, 2016 Agreement) appears to limit your services to the Kitsap County matter. There does not appear to be any grant of authority for services in connection with the Cebelak matter. Yet, in mediation, you and fellow members of the Clallam County team expanded the mediation dialogue and settlement to include that previously unrelated matter. This reality strongly suggests that your status as Deputy Prosecuting Attorney goes well beyond the scope of your contract for services and that you have unwritten authorizations that extend beyond the contractual boundaries that would be applicable in an independent contractor agreement. We must presume that your actions on behalf of the County are not ultra vires to your contract for services but as I’ve noted there is a discrepancy in the record on this point. Perhaps you can clear this up by providing an explanation for the apparent conflict.
So as to leave no stone unturned, I want to also comment on the point you make about your role as “panel counsel” for Patterson, Buchanan, Fobes & Leitch, P.S. in their representation of the Washington Counties Risk Pool. You imply that there is no conflict of interest because, if I understand the awkward construction of your sentence, that you have nothing to do with coverage decisions. However, I note that you are a senior partner in a firm that serves both the Washington Counties Risk Pool and its member Counties including Clallam County. Presumably, as a senior partner you receive profits from what you are appearing to characterize as peripheral engagements. I think my professional qualifications have been adequately established in considerable media coverage of me and my career in risk management. I have reviewed the coverage agreements, both the risk pool and excess liability coverages, and I have concluded – professionally and as a subject matter expert – that Clallam County has a very strong claim for coverage under the pool coverage for the majority of the costs incurred by Clallam County in connection with the Cebelak matter. The fact that you and your firm represent the Washington Counties Risk Pool, combined with the fact that the Washington Counties Risk Pool has thus far evaded its coverage obligations to Clallam County in connection with the settlement to which I was a party, is more than adequate basis for a conflict of interest to exist. Perhaps that conflict will be resolved after my review of the April 25, 2016 Agreement but at present I assert it is a valid concern. Please review again RCW 32.27.040 and give special attention to the language it contains pertaining to conflicts of interest. While the conflict of interest language is not directly on point to this discussion, the law does contain express language indicating that conflict of interest in Deputy Prosecuting Attorney engagements merits review and consideration.
So to conclude, yes, these are the droids I’m looking for Mr. Fobes. Your succinct responses do not adequately respond to or resolve any of the issues I have raised. I want access to the public records I have requested so I can make an adequate determination of the County’s conduct in connection with the settlement it entered into with the Lange Family Trust. As I have previously advised, I believe the County intentionally misrepresented the facts, in violation of both the PRA and applicable discovery rules, to induce me to sign a settlement contract. My claim for $54,705.01 is made on the basis that I would not have agreed to the settlement amount in the agreement had the County been transparent and not actively suppressed the information relating to Ms. Barkhuis’ involvement and insight into the willful non-disclosure of public records by Clallam County.
Scott K. Lange
Relevant excerpts below:
*** CHANGE IN 2017 *** (SEE 1594-S.SL) ***
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) “Agency” includes all state agencies and all local agencies. “State agency” includes every state office, department, division, bureau, board, commission, or other state agency. “Local agency” includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.
(2) “Person in interest” means the person who is the subject of a record or any representative designated by that person, except that if that person is under a legal disability, “person in interest” means and includes the parent or duly appointed legal representative.
(3) “Public record” includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. For the office of the secretary of the senate and the office of the chief clerk of the house of representatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records; personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by any official action of the senate or the house of representatives.
(4) “Writing” means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.
[ 2010 c 204 § 1005; 2007 c 197 § 1; 2005 c 274 § 101.]
Documents and indexes to be made public.
*** CHANGE IN 2017 *** (SEE 1595.SL) ***
(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of *subsection (6) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by this chapter, an agency shall delete identifying details in a manner consistent with this chapter when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.
Appointment of deputies—Special and temporary deputies.
The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal. Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor’s office. Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney, except that such deputy need not be a resident of the county in which he or she serves. The prosecuting attorney may appoint one or more special deputy prosecuting attorneys upon a contract or fee basis whose authority shall be limited to the purposes stated in the writing signed by the prosecuting attorney and filed in the county auditor’s office. Such special deputy prosecuting attorney shall be admitted to practice as an attorney before the courts of this state but need not be a resident of the county in which he or she serves and shall not be under the legal disabilities attendant upon prosecuting attorneys or their deputies except to avoid any conflict of interest with the purpose for which he or she has been engaged by the prosecuting attorney. The prosecuting attorney shall be responsible for the acts of his or her deputies and may revoke appointments at will.
Two or more prosecuting attorneys may agree that one or more deputies for any one of them may serve temporarily as deputy for any other of them on terms respecting compensation which are acceptable to said prosecuting attorneys. Any such deputy thus serving shall have the same power in all respects as if he or she were serving permanently.
The provisions of chapter 39.34 RCW shall not apply to such agreements.
The provisions of *RCW 41.56.030(2) shall not be interpreted to permit a prosecuting attorney to alter the at-will relationship established between the prosecuting attorney and his or her appointed deputies by this section for a period of time exceeding his or her term of office. Neither shall the provisions of *RCW 41.56.030(2) require a prosecuting attorney to alter the at-will relationship established by this section.
[ 2009 c 549 § 4047; 2000 c 23 § 2; 1975 1st ex.s. c 19 § 2; 1963 c 4 § 36.27.040. Prior: 1959 c 30 § 1; 1943 c 35 § 1; 1903 c 7 § 1; 1891 c 55 § 6; 1886 p 63 § 17; 1883 p 76 § 23; Code 1881 § 2142; 1879 p 95 § 16; Rem. Supp. 1943 § 115.]
From: Duncan K. Fobes [mailto:firstname.lastname@example.org]
Sent: Friday, June 16, 2017 3:46 PM
To: Scott Lange
Cc: William John Crittenden; Jan D. Larsen; Tim T. Parker
Subject: RE: LANGE V COUNTYMr. Lange,Thank you for your email. I would like to respond to some points in your email:
1. I can confirm that my client does not want to offer any money in response to your demand for $54,705.01.
2. I do not represent the Washington Counties Risk Pool, including on coverage issues. I am one of the panel attorneys for the Pool and have been retained to represent some of its member counties, including Clallam County.
3. I am not a public agency. I am a private attorney and independent contractor to Clallam County in this case. I do not consider myself subject to the Public Records Act.
4. I have not been authorized to waive any of Clallam County’s privileges in this matter.
Thank you and I hope you have a nice weekend,
Duncan K. Fobes, Principal
Patterson ∙ Buchanan ∙ Fobes & Leitch, Inc., P.S.
DIRECT 206.462.6704 | TOLL FREE 800.722.3815
From: Scott Lange [mailto:email@example.com]
Sent: Monday, June 12, 2017 12:57 PM
To: Duncan K. Fobes <firstname.lastname@example.org>
Cc: William John Crittenden <email@example.com>
Subject: RE: LANGE V COUNTYMr. Fobes,Since our phone conversation I have been reviewing documents and considering the merits of re-opening my case against Clallam County.
One of the things I have been mulling over is the question why we needed to wait to have a phone conversation for you to advise me that your client was not interested in my proposal to resolve all matters in exchange for paying the unreimbursed legal balance of $54,000. It struck me that your decision to forego a written declination of my proposal may have well be calculated.
Initially my thought was that you were retained outside counsel for Clallam County. After reviewing the RCW on special deputy prosecuting attorneys, however, I realize that you are acting in the capacity of Mark Nichol’s deputy and a member of his staff. Which means that you can be expected to follow his legal strategy when it comes to contested matters.
Which, without further explanation, leads me to the conclusion that you need to re-convey the information we discussed in writing. I would like to formally document the position Clallam County has taken in response to my proposal to conclude this mess for what most fellow professionals would agree is a reasonable sum. We have already seen, on multiple occasions, that Mr. Nichols has no concept of fiduciary responsibility to taxpayers.
Instead of making difficult decisions to resolve matters, he seems to believe that his legal assessments are sound and that the best strategy is to ignore or deny, then force adversaries to file suit, roll the dice on defenses, and pay the penalties when the legal strategy doesn’t pan out (or, in this case, leaving the problem to his successor). I just want to document for the record that we are at step one in the Nichol’s approach to dealing with County misdeeds. Kindly, by letter or reply email, confirm that your client is not interested in entertaining my proposal.
If you could provide some clarity on a few peripheral issues at the same time I would be most appreciative. You recall, I hope, the issues I raised relevant to conflict of interest. I note that Mr. Nichols has dumped yet another potentially insured matter onto the Counties Risk Pool in the form of the recently filed sexual harassment lawsuit filed against him. It is difficult for me to understand how you can represent Mr. Nichols as a special deputy prosecuting attorney when you have another client that may have contrary interests to those of Mr. Nichols. Which causes me to wonder whether you are protected for potential conflicts with professional rules and standards by the errors and omissions liability insurance your County client requires or via the indemnification provisions for County employees.
Would you mind sorting this out for me in your response? My own thought is that there is a conflict of interest and that you should probably not be acting as deputy prosecuting attorney. My guess is that Mr. Nichols has already resolved this and as a client of government I would be most interested in his reasoning if you could share it.
I am also wondering if, as deputy prosecuting attorney, you are now subject to Public Records Act requirements. You may be aware that Clallam County has waived its legal privilege in regard to most of the subject matter pertaining to my PRA litigation against it and I am thinking perhaps this also means I have a legal right to access those communications between you and Mr. Nichols regarding the subject matter. No doubt you will not provide the clarity I seek on this question so I will have to rely on my highly competent legal counsel to get the answers I seek there.
Finally, I can advise you that Mr. William Crittenden’s representation appears imminent and that he will be a tremendous resource in resolving some of the questions I have noted above. Initially, Mr. Crittenden and I will focus on reviewing the facts and making a determination regarding the merits of my case to reopen my PRA action against Clallam County and your client.
When in his sole discretion he believes it is appropriate, in my best interest, and consistent with his professional standards pursuant to the rules of professional conduct, I will relinquish all communications with you and your client to him. In other words – and I apologize for not agreeing to Mr. Nichol’s preferred methodology for resolving claims against the County – this may be your last opportunity to resolve this matter for the previously requested sum of $54,705.01. Mr. Nichol’s legal judgment and associated decisions responding to my legally established legal violations are the direct and proximate cause of the legal fees I incurred and my request must be viewed as entirely reasonable.
Let me be clear. In your requested reply to this communication you repeat what you said in our phone conversation, I intend – subject to input from counsel – to pursue an amount considerably in excess of the total stated above. You may recall that as a core principles of legislative policy penalties under the PRA should be sufficient to deter violators from future violations. I think in this case, where I have inside witnesses and a confirming letter from one of your fellow deputy prosecuting attorneys, it is very clear that Mr. Nichols feels he can continue to game the system when he thinks it is to his advantage. As a client of government I don’t think that is a fair proposition.
I won’t hold my breath to hear back from you. As the record clearly reflects, I try to play my cards face up. I’m giving you the advantage of my thoughts here. If there was nothing pre-meditated about the manner in which you conveyed your client’s refusal to entertain my resolution proposal then you should have no difficulty re-stating your position formally and in writing. If I don’t receive a response, however, please note that I will interpret your silence to mean it was your intent not to document our “dialogue”.
I wanted to send a separate addendum to my last message, primarily for the benefit of the media and any coverage they want to provide as this new matter unfolds.
You have suggested that you are “independent” and that there is no conflict of interest associated with the services you are providing to the County in connection with the matters I’ve raised. I assert that Mark Nichols has compromised your position on this by the very manner in which he engaged you as a Deputy Prosecuting Attorney. I think this can be best explained by going through the normal process by which insurance “panel counsel” would be involved in disputed matters which may or may not be the subject of insurance coverage.
As you know, when a claim or summons and complaint is received where insurance coverage may apply, it is generally accepted practice for counsel or the risk management staff to forward copies of the claim or complaint to the insurer as required by policy conditions. This “tender” of claim carries with it the implied or expressed expectation by the insured that the policy should respond to defend the action and/or settle or try the matter on the insured’s behalf.
There is sufficient reason to believe that Clallam County tendered my claims regarding the Cebelak land use violations to its insurers. Records I have reviewed indicate Mark Johnsen represented the County on behalf of the Washington Counties Risk Pool, implying that a tender of claim was made and that WCRP accepted its duty to defend the matter. The acceptance of the duty to defend occurred in recognition of how various elements of my claim triggered the coverage provisions of the insurance policy. Specifically, I asserted property damage in the form of erosion of my shoreline property and I also asserted potential civil rights violations associated with the County’s suppression of due process in connection with my constitutionally protected property rights. I think if you review the WCRP insuring agreement you will agree that these are coverage triggering events.
Now for the benefit of Mr. Wilson, an insurer may not immediately deny insurance coverage if the wording of the claim or complaint contains allegations that may potentially trigger and insurance obligation under the insurance contract. In cases where the insurer disputes the availability of insurance coverage it issues a “reservation of rights” letter acknowledging the duty to defend, accepting the tender of defense, but reserving the right to deny coverage and withdraw from the proceedings later should facts establish the matter is outside the purview of the coverage provided by the policy.
Again, noting that the WCRP coverage was clearly triggered by the Cebelak related claims, and also noting that the Cebelak and Kitsap County PRA matters were the subject of a combined, non-itemized pecuniary settlement, Mr. Nichols needed only to tender the matters to WCRP to achieve defense services under the insurance agreement for those matters. A separate, purported “independent” contract would not have been necessary and payment for legal services received would have been subject to the insurance contract. There would be no question as to the interests involved – Mr. Nichols representing the County’s interests; WCRP/you representing the County’s interests via the tender and terms of coverage; and WCRP representing its own interests via its coverage counsel as to its duty to defend and/or indemnify.
Instead, Mr. Nichols executed a Deputy Prosecuting Attorney agreement with you. This altered the interests of the parties. Under the DPA agreement your loyalties are now to the Prosecuting Attorney rather than to the defendant in general and those loyalties are no longer constrained by the terms of coverage. However, as you continue to represent WCRP in whatever capacity “panel counsel” means to you, divided loyalty becomes a possibility.
Not that we must leave this analysis to the matters at hand. I have preserved the record of the prior Nichol’s litigated matter involving several Clallam County employees who sued Mr. Nichols for age and gender discrimination. As in the Cebelak and Public Records Act matters, Mr. Nichol’s has a clear personal interest in the litigated matters. It seems we have yet another Nichol’s situation at hand with the recent litigation filed against him for sexual harassment. If in each case Mr. Nichols retains you or other members of your firm as a Deputy Prosecuting Attorney, he creates a significant conflict of interest. Independent control of any of these matters by the insurer may result in a finding unflattering to Mr. Nichol’s public image and political career. Under the DPA agreement, however, Mr. Nichols can control the outcome of the case. Under the DPA agreement Mr. Nichols has the power to order counsel who would otherwise independently represent the WCRP to subordinate counsel’s interests to the interests of Mr. Nichols. Such subordination may include directing the WCRP and/or its counsel to settle rather than try a matter, subjecting the County and its taxpayers to expense, or directing the defense or settlement of a matter so as to preclude availability of coverage.
I am concerned – and I believe my fellow citizens of Clallam County should be concerned that – by using the Deputy Prosecuting Attorney’s approach to responding to claims made against the County that are directly attributable to the acts and failures to act by Mark Nichols – Mr. Nichols is extending control in a manner primarily devised to protect his interests over those of the County and the people the County works for. In other words, the DPA agreement serves to suppress transparency and enables Mr. Nichols to divert considerable amounts of taxpayer money to avoid the embarrassment he should accept as a consequence of a long running series of legal gaffs and violations on his part.
Mr. Fobes by going along with the DPA arrangement devised by Mr. Nichols you become a participant in the misuse of public funds and the center of a coming storm on the subject of conflict of interest. I understand you may find me to be irritating in how I analyze the law and apply it to the vast expanse of questionable governance going on in Port Angeles these days, but just keep in mind that your client has been doing the same thing for some time now, only his antagonisms are directed at honest citizens and fellow elected officials. Your client took license with the Public Records Act in coercing Ms. Barkhuis into submission with his agenda. It is an age old adage that those who live by the sword die by the sword. Mr. Nichols has invited the inquiry and assertions I now make and I assure you that I will take every advantage of the public records act – just as he has done – to make sure his constituents understand the various offenses Mr. Nichols has committed. From direct involvement with Mr. Nichols I believe he is unsuitable for the office he holds and I intend to help unseat him using all legal means available to me.